A Request to Review is used when a party to the action believes that either:
a) the board member made a serious error in the order.
b) a party was not able to reasonably participate in the hearing.
Landlord Tenant Board Ontario Rule 29 and Interpretation Guideline 8 deal with Requests to Review.
“A review is not an appeal or an opportunity to change the way a case was presented. The purpose of the review process is not to provide parties with an opportunity of presenting a better or different case than they did at first instance.”
A Request to Review must be filed within 30 days of the original order. If it is not filed on time, a party may request that the board extend the time to make the request.
If a Vice-Chair of the LTB believes upon reading the Request to Review that there may be a serious error or that a party was unable to participate in the hearing, they will order a hearing be scheduled.
If the Vice-Chair is not convinced that a serious error may have occurred or a party was not able to attend the hearing they will dismiss the request without a hearing.
At a review hearing the party who requested the review must first convince the member of the serious error or valid reason why they failed to attend the hearing.
If the requestor is unable to convince the member then the review will be dismissed without any rehearing of the case.
Many self-represented litigants fail to prepare to prove a serious error occurred. Therefore their application is dismissed at this preliminary state.
Some self-represented parties fail to understand that a hearing being scheduled is only the first step in review process.
A Request to Review should not be taken lightly. You should hire a paralegal Ontario to represent you.
Examples of serious errors are:
- An error of jurisdiction. For example the order relies on the wrong section of the RTA or exceeds the LTB’s powers. This issue need not have been raised in the original hearing;
- A procedural error which raises issues of natural justice;
- An unreasonable finding of fact on a material issue which would potentially change the result of the order;
- New evidence which was unavailable at the time of the hearing and which is potentially determinative of one or more central issues in dispute;
- An error in law. The LTB will not exercise its discretion to review an order interpreting the RTA unless the interpretation conflicts with a binding decision of the Courts or is clearly wrong and unreasonable; and ,
- An unreasonable exercise of discretion which results in an order outside the usual range of remedies or results and where there are no reasons explaining the result.
Some examples where LTB has found a party was “not reasonably able to participate” include:
- Requestor was out the country, in hospital or in police custody when the notice of hearing was served and/or the hearing was held.
- Notice of hearing and other documents were served on the wrong address or the wrong person, received late or not received at all.
- Requestor was unable to attend or ask for an adjournment of the proceeding due to sudden illness, a family crisis, extreme weather or transportation problems.
- Requestor was led to believe by the other party that there was no need to attend the proceeding or reasonably believed the issues had been settled.
- Requestor or the requestor’s representative was at the LTB but provides a reasonable explanation why he or she was not present in the hearing room when the application was decided.
Parties are expected to make every effort to produce all relevant evidence in support of their positions in the original hearing. The review will be dismissed unless the LTB is satisfied the new evidence could not have been produced at the original hearing, is material to the issues in dispute and its consideration could change the result.
If you need representation at a Request to Review or any LTB matter contact Marshall Yarmus of Civil Litigations at 416-229-1479 or http://www.civilparalegal.com/home_services/landlord-and-tenant-board/